International adoptions of South African children are in a state of legal limbo, with legislation to give effect to an international convention signed in 2003 not yet enacted.

"In effect we have a legal anomaly. We have acceded to a legal convention, but everything that we are doing is ultra vires because it's not part of our law We are operating extra-judicially, can you imagine the implications?" asked Susan Abro, chairman of the family law committee of the Law Society of South Africa.

She was talking about the country establishing a central adoption authority under the Hague Convention.

The convention regulates inter-country adoptions to prevent
child trafficking and illegal adoptions.

However, the Children's Bill which will set up the authority has not yet been enacted.

Abro said the Law Society wanted lawyers to be part of the process of adopting children - now almost exclusively the domain of social workers - because it was a legal process involving a change in status for the child and the adoptive parents.

"It is absolutely fundamental for lawyers to be part of the process to best ensure the interests of the child," she said.

Debbie Wybrow, an attorney involved in inter-country placements, said the issue of adoptions was a "huge political hot potato".

Some in government thought that considering international adoptions was an admission that South Africa could not take care of its own children.

"(But) there are too many children (to adopt) ... it shouldn't be seen as a failure," she said.

The Department of Social Development began an audit in March to determine the need for inter-country adoptions.

The number of local, mostly black, orphans, estimated in the hundreds of thousands, increases yearly as Aids takes its toll on the adult population.

"We would like to assess if enough efforts are being made by the adoption organisations to recruit adoptive parents within the country ... before considering inter-country adoptions," said Dr Maria Mabetoa, chief director of the children, youth and family directorate at the department.

She said international adoption should be a last resort.

Mabetoa said South Africa now worked with 11 foreign countries. None of these are in Africa, because most of them have not signed the Hague Convention.

Mabetoa said because HIV/Aids orphaned many children, the central authority was preparing guidelines so that HIV-positive babies were not discriminated against.

Lynette Schreuder, a director at Child Welfare SA, said the Department of Social Development would be the central authority facilitating inter-country adoptions.

The central authority would accredit organisations to conduct the actual adoptions with coun-tries that have agreements with South Africa, such as Sweden, Finland, Norway, Belgium and Germany.

Schreuder said while there was no moratorium on international adoptions, the government was reluctant to enter into new arrangements with other countries.

"If we have exhausted all other avenues for trying to place children in this country, then children should be adopted by overseas parents. We believe this is a viable option so that children have a family."

Schreuder said there were opposing views on "transracial" or "transcultural" adoptions.

Child Welfare's position was that one should not consider race, colour or creed, but rather the child's right to a family.The placement of the child should also follow correct procedures.

"Many organisations had to disband their adoption units or scale down because of a lack of resources. If the central authority refers cases to accredited NGOs they have to finance them to do the work."

Schreuder said by accrediting organisations, the authority would also be able to monitor unscrupulous agents.

She said Child Welfare SA was against lawyers becoming involved in adoptions. Social workers were experts in adoption work and could effectively protect children's rights. There was "no role" for attorneys.

Mabetoa, however, said the department supported limited involvement of lawyers.

She said the central authority would only accredit child protection organisations to perform local and international adoptions. Lawyers should belong to such organisations if they wanted to be involved in the adoption process.
Source:  Independent Newspapers:  Pretoria News